United States District Court, D. Nevada
FINDING AND RECOMMENDATION
C. W. HOFFMAN, Jr., Magistrate Judge.
This matter was referred to the undersigned Magistrate Judge on Defendant Kevin Stubbs' Motion to Suppress Evidence (#34), filed on December 12, 2013, and the Government's Response (#41), filed December 13, 2013. The undersigned conducted a hearing in this matter on January 31, 2014. Defendant Corey Stubbs did not join the motion.
On October 8, 2013, the Grand Jury returned an Indictment charging Defendant Kevin Stubbs ("Stubbs") with one count of being a felon unlawfully in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (#1). The Government also seeks forfeiture under 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461(c). Stubbs was detained pending trial. (#21). On December 10, 2013, the Government's motion to continue the trial date to accommodate a witness was denied. (#44). Immediately thereafter, Defendant Stubbs filed a motion to suppress (#34) and requested expedited consideration.
The motion to suppress (#34) is straightforward: Stubbs requests that the firearm seized during the underlying vehicle search should be suppressed because the search violated the Fourth Amendment. The Government argues that the motion to suppress should be denied because (1) Stubbs lacks standing to object to the search, (2) the firearm was in plain view, and (3) the warrantless search of the car was appropriate. See Govt's Resp. (#41). The undersigned conducted an evidentiary hearing on the motion on January 31, 2014, wherein the Court heard argument from counsel and took testimony from Las Vegas Metropolitan Police officers, Officer Kyle Race ("Officer Race") and Officer Daniel Hawkins ("Officer Hawkins").
The relevant date underlying the challenged search and seizure is September 27, 2013. On that date, Officer Race was conducting surveillance at the 9700 block of Powell Plateau in Las Vegas, Nevada. At the time of surveillance, Officer Race was in plain clothes and an unmarked vehicle. Officer Race testified that prior to initiating surveillance, he and other officers received information that a newer model, black Chevy Camaro had been embezzled. Officer Race testified further that the investigating officers had an idea who might be operating the vehicle prior to initiating the surveillance. The vehicle was not at the surveillance location initially, but Officer Race observed the vehicle arrive later during his surveillance. He testified that only one person exited the vehicle, whom he recognized as Defendant Corey Stubbs. Officer Race testified that he was familiar with Corey Stubbs and knew him to be a convicted felon.
At some point during his surveillance, Officer Race contacted additional officers to assist in the surveillance. Eventually, Officer Race saw Corey Stubbs return to the vehicle accompanied by Kevin Stubbs. After a brief conversation with an individual in a white vehicle parked in the driveway, Kevin Stubbs entered the passenger side of the Chevy Camaro. At this point, believing the vehicle was about to be driven away, Officer Race radioed for patrol units to stop the vehicle. He testified that within moments, patrol units arrived and blocked the vehicle and its occupants from escaping. He recalled that at least one of the patrol units had its emergency lights activated. He testified that once the patrol units approached and stopped the vehicle, Kevin Stubbs exited the vehicle and ran towards the front of a residence. Officer Race pursued Kevin Stubbs on foot and before Stubbs was able to enter the residence, he was taken into custody.
After Kevin Stubbs was taken into custody, Officer Race testified that he looked back toward the vehicle and saw that the passenger door was open. Officer Race went back to the vehicle and looked inside it. He testified that he did not enter the vehicle. Looking inside the vehicle, Officer Race saw a semiautomatic handgun on the passenger seat of the vehicle. Officer Race further testified that to his knowledge, in documenting the vehicle and evidence: the gun was not moved, the door was not opened, and no special aid was needed to view the interior of the vehicle. Officer Race later obtained statements from Kevin Stubbs, who had no information about the vehicle.
On cross-examination, Officer Race confirmed the short time period that lapsed from the time he asked for the assistance of marked patrol units and when the units arrived. He did not dispute that a photograph depiction in defense exhibit B shows the right passenger door closed and the window up. He did not dispute that some photograph depictions from exhibit B appeared to indicate that the vehicle door was opened at some point to take photographs. Though none of the surveillance, arrest, or custodial statements taken from Kevin Stubbs were recorded, Officer Race confirmed that Stubbs stated that he had no idea the vehicle had been embezzled. He further testified that the vehicle was rented to a Richard Cruz, not Kevin Stubbs.
The Government also called Officer Hawkins to testify at the evidentiary hearing. His testimony regarding the events leading up to Kevin Stubbs arrest was substantially the same as Officer Race. He was a member of the unit tasked with recovering the reportedly embezzled vehicle. He participated in the surveillance and was familiar with both Kevin and Corey Stubbs, including their status as prior convicted felons. He testified that prior to initiating surveillance, the officers were provided an address where it was believed Kevin and Corey Stubbs resided. He did not participate in the initial set up of the surveillance. When he arrived on the scene, the vehicle was already parked in front of the residence. He also observed both Kevin and Corey Stubbs at the residence, and he witnessed them get in the vehicle with Kevin Stubbs in the passenger seat. He confirmed the events surrounding the stop of the vehicle, including that Kevin Stubbs exited the passenger side of the vehicle and ran toward the residence. He assisted with the capture and arrest of Kevin Stubbs.
Eventually, Officer Hawkins returned to the vehicle and testified that its condition had not been changed, modified, or altered by law enforcement personnel. He testified that when he returned to the vehicle the passenger side door remained open. He looked into the vehicle and saw a firearm sitting on the front passenger seat of the vehicle. He did not have difficulty viewing the firearm from his position outside the vehicle. He did not enter the vehicle to view the handgun. He did not require the assistance of any device to view the handgun.
On cross-examination, Officer Hawkins testified that he was present when photographs of the scene were taken, although he was not the photographer. He was asked a series of questions regarding the photographs depicted in defense exhibit B. He was unable to testify as to the timing of the photographs taken at the scene. He was unable to testify regarding whether another officer had closed the passenger side door of the vehicle. He confirmed that Kevin Stubbs indicated he had knowledge regarding the status of vehicle as embezzled or stolen. He confirmed that Kevin Stubbs was in custody when the firearm was found. On redirect, Officer Hawkins confirmed that the passenger side door of the vehicle remained open from the time Kevin Stubbs fled the vehicle until the time Officer Hawkins looked into the vehicle and saw the firearm.
As the parties acknowledge, the critical preliminary question that must be addressed is whether Defendant Kevin Stubbs has sufficient standing to challenge the constitutionality of the vehicle search. The briefing offered by the parties on this issue was limited. Defendant does not address it in his initial motion. The Government cursorily posits that the Defendant is unable to meet his burden to show he has standing "because it is virtually ...